Yunus (Suing for and on behalf of the Estate of Alima Mbalalo Mathembe) v Kitetu
The bottom line
#A Kenyan court let a grieving daughter appeal seven months late, but refused to stop execution of the judgment because no appeal existed yet.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of an administrator ad litem who was not substituted in the primary suit
Substitution was unnecessary; the suit was concluded and only execution remained, and the present application is a new proceeding
The court read Order 24 Rules 1, 3(1), 9 and 10 of the Civil Procedure Rules together. Rule 10 exempts execution proceedings from substitution requirements, and since the trial suit had been determined leaving only execution, and the present application is a new proceeding rather than an execution proceeding, no law cited required substitution before commencing it.
Whether the delay of about seven months in filing the appeal should be excused under Section 79G
Yes - the delay was not inordinate given the bereavement, lack of communication of the judgment date, and financial constraints
The court found the reasons for delay sufficient, noting the applicant was mourning her mother who died on 23rd June 2022, learned of the judgment in January 2023, promptly obtained a limited grant ad litem on 12th January 2023, and had financial constraints. It applied the Aviation Cargo discretion test and Article 159(2)(d) on procedural technicalities.
Whether the appeal could operate as a stay of execution
No - Order 42 Rule 6 presupposes an existing appeal, and none existed
The applicant relied on Order 42 Rule 6, but that provision contemplates an appeal already in existence. Since leave to appeal out of time was only being sought and no appeal had been filed, the court could not consider or grant the stay prayer.
Legal principles established
#- An administrator of a deceased party need not first apply for substitution in the concluded suit before commencing a new proceeding such as an application for leave to appeal out of time
- Filing an application by one of two jointly appointed administrators is not unlawful absent a cited legal prohibition
Court orders
#- 1.The proposed Appellant be and is hereby granted leave to appeal out of time against the whole judgment of the Hon. S. Mbungi Chief Magistrate delivered on 28th October 2022 at Kitui
- 2.Prayer 2 (stay of execution) is dismissed
- 3.The Memorandum of Appeal is to be filed and served within 7 days from the date hereof
- 4.The costs of this application are awarded to the respondent
- On appeal from
- Chief Magistrate's Court at Kitui
- Kitui CMCC 229 of 2013
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act (leave to appeal out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yunus (Suing for and on behalf of the Estate of Alima Mbalalo Mathembe) v Kitetu", Case Analysis (2023). Environment and Land Miscellaneous Application 9 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21637/eng@2023-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.